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RONEIL CAMPBELL,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 7, 2013)
Before HULL, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
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On November 9, 2011, while he was still serving the remainder of his state
sentence, Campbell filed a counseled motion to reopen removal proceedings and
requested a stay of removal. He attached to the motion an application for relief
under the United Nations Convention against Torture (CAT), in which he averred
that if he returned to Jamaica he likely would be persecuted for being homosexual.
On November 17, while his motion was pending, DHS removed Campbell to
Jamaica. On December 1, the IJ nonetheless granted Campbells motion to reopen
and request for a stay of removal.
DHS moved to reconsider the IJs decision, arguing the IJ lacked jurisdiction
to grant the motion to reopen because Campbell was not in the United States when
the IJ acted. The IJ agreed, granted DHSs motion to reconsider, and denied
Campbells motion to reopen. Campbell appealed to the BIA, which dismissed the
appeal. The BIA reasoned that Campbells motion to reopen did not automatically
stay his removal and, because DHS had a final removal order at the time of
Campbells November 17 removal, the action was lawful. Although the BIA did
have jurisdiction to entertain the motion to reopen despite Campbells removal,
Jian Le Lin v. U.S. Atty Gen., 681 F.3d 1236, 1241 (11th Cir. 2012), the sole form
of relief Campbell sought (CAT relief) was available only to applicants present in
the United States. Accordingly, the BIA concluded, Campbells request for relief
was moot. Campbell then filed the instant petition for review.
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II.
Although we generally lack jurisdiction to review an order against an alien,
such as Campbell, who is removable because he committed a crime under 8 U.S.C.
1227(a)(2), we retain jurisdiction to address constitutional issues and questions
of law. 8 U.S.C. 1252(a)(2)(C), (a)(2)(D). Because Campbell challenges the
BIAs determination that he was ineligible as a matter of law for CAT relief, we
may review his petition.1 Id. 1252(a)(2)(D). The BIA did not adopt the IJs
decision, so we review only the BIAs decision. See Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001).
We typically review the BIAs disposition of a motion to reconsider for an
abuse of discretion. Calle v. U.S. Atty Gen., 504 F.3d 1324, 1328 (11th Cir.
2007). But where, as here, the BIAs decision was based on a legal determination,
we review de novo. Scheerer v. U.S. Atty Gen., 513 F.3d 1244, 1252 (11th Cir.
2008). The BIAs interpretation of its own regulations is entitled to deference as
long as it is reasonable as opposed to plainly erroneous and not inconsistent
with the will of Congress or the text of the regulation itself. Li Shan Chen v. U.S.
Atty Gen., 672 F.3d 961, 965 n.2 (11th Cir. 2011) (citing Auer v. Robbins, 519
U.S. 452, 461 (1997)).
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Campbell also argues DHS could not lawfully have removed him after he filed his motion to
reopen. But he does not dispute that DHS had a valid order of removal. And he cites no
authority indicating that the filing of a motion to reopen with an application for CAT relief
attached operates as an automatic stay of removal. We therefore find this argument meritless.
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III.
Campbell contends the BIA erred and violated his right to due process by
finding him ineligible for apply for CAT relief. We do not agree. It is true that we
have recently decided that physical removal of a petitioner by DHS does not
preclude the petitioner from pursuing a motion to reopen. Jian Le Lin, 681 F.3d at
1241. Here, the BIA accepted that fact but nonetheless concluded that Campbell
was ineligible as a matter of law for the relief he sought through his motion to
reopen. The BIA cited its regulations, which make CAT relief available to an
applicant for withholding of removal who shows that, if removed to the
proposed country of removal, he would more likely than not be tortured. 8 C.F.R.
1208.06(c) (emphasis added). And the BIA construed this text to mean
Campbells request for relief was moot because he was not an applicant for
withholding of removal, nor was he still facing possible removal to a proposed
country. Id. Campbell makes no argument for why this interpretation should not
be entitled to deference. See Li Shan Chen, 672 F.3d at 965 n.2. We therefore
defer to the BIAs interpretation of its regulations to mean Campbell is ineligible
for CAT relief and, accordingly, conclude that Campbells due process rights were
not violated.
PETITION DENIED.